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The difference between criminal and civil cases in the context of the Bruce Lehrmann trial

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Although a criminal trial will not proceed, it is possible both Lehrmann and Higgins may pursue separate civil claims.

Earlier this month, a planned retrial of Bruce Lehrmann for the alleged sexual assault of Brittany Higgins was dropped.

The decision means there will be no verdict on the criminal allegations made by Higgins. Lehrmann denies these allegations.

Despite the criminal case being dropped, there may still be further legal actions taken.

Background

Higgins alleged that Lehrmann sexually assaulted her in an office in Parliament House in 2019. Both were working as staffers for the Liberal Party at the time. Lehrmann has denied the allegations.

A criminal trial was held in the ACT Supreme Court, but was declared a mistrial after a member of the jury brought unauthorised materials into the jury room.

ACT Director of Public Prosecutions Shane Drumgold, who led the prosecution, subsequently announced he would not proceed with a planned retrial because he was concerned it would present a “significant and unacceptable risk” to Higgins’ life.

Civil claims

Although a criminal trial will not proceed, it is possible both Lehrmann and Higgins may pursue separate civil claims.

Criminal trials involve the prosecution of a person for an alleged crime. Civil trials are disputes between parties – one party claiming to have been wronged by another, often seeking financial compensation (‘damages’) for the resulting harm.

Whereas criminal convictions must be proven beyond a ‘reasonable doubt’, civil matters are decided on ‘the balance of probabilities’ (is it more likely than not that the party was wronged).

Lehrmann’s civil options

It has been widely reported that Lehrmann is considering suing some media outlets and journalists for defamation.

A lawsuit may focus on coverage of Higgins’ allegations and/or the publication of a speech she gave outside court after the mistrial was declared.

There is no suggestion Lehrmann plans to sue Higgins herself, but any trial would include her allegations, and she has said she is willing to testify.

Higgins claim

Several media outlets have reported Higgins has pursued a civil claim against the Federal Government and former Ministers Linda Reynolds and Michaelia Cash, both former employers of Higgins.

The Nine papers report the claim includes damages due to “negligence”. Reynolds has confirmed the existence of a civil claim.

During the trial, Reynolds was accused by prosecutor Shane Drumgold of seeking to assist Lehrmann’s legal team. Reynolds denied she had acted inappropriately.

Integrity investigation

There have been calls for an inquiry into the handling of the investigation and the case by authorities.

Drumgold has accused the Australian Federal Police (AFP) of pressuring him not to proceed with the case and trying to undermine it. According to ACT Attorney-General Shane Rattenbury, the AFP’s conduct has been referred to the Federal law enforcement integrity watchdog.

The police union has called Drumgold’s accusation a “smear” and called for a broader legal investigation of all parties involved, including prosecutors.

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